Cliff Notes Don’t Cut It

Attorney General Eric Holder recently gave a speech on national security matters to students at Northwestern University Law School. In his speech, Attorney General Holder discussed, for the first time publicly, the authority the President has to kill American citizens working for al Qaeda. Members of Congress, legal scholars and the American public had waited months to hear the rationale and background for the President’s actions.

Most notably, Attorney General Holder stated, “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” He went on to state that the Constitution “does not require judicial approval before the President may use force abroad against a senior operation leader of a foreign terrorist organization…even if that individual happens to be a U.S. citizen.”

Essentially, the Attorney General argued that the government killing an American citizen is justified via an executive branch process that is conducted in secret with no oversight. As The New York Times put it, “President Obama…has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.”

While there is a real issue to discuss about what the breadth and scope of the executive branch power is during wartime operations, an open discussion on the issue—to the extent possible given classified considerations—is warranted.

The President and Attorney General felt the open and public airing of the Justice Department’s legal basis for interrogation of foreign nationals under the Bush Administration should be made public, so logically, wouldn’t that extend to the decision to kill an American citizen?

To bend over backwards to declassify memorandums outlining interrogation of non-U.S. citizens as a way to embarrass a previous administration, but then refuse to show the math when they believe they can kill a U.S. citizen with limited Due Process is near the height of hypocrisy.

The Justice Department has declined to provide the Judiciary Committee with the department’s opinion that allegedly outlines the authority to kill Americans. I asked for this legal analysis back in October when it was first reported that a memo was written. However, to date, the Justice Department refuses to admit whether such a memo even exists.

If the Attorney General is going to justify targeted killings based upon “robust” congressional oversight, he needs to follow through and make these documents available to Congress, not just give us the Cliff’s Notes in a speech to law students. Congress can’t conduct oversight without the facts. So, if the administration wants to be transparent and law-abiding, it’s time to provide Congress the memo to ensure “robust” congressional oversight.

Chuck Grassley is a United States Senator from Iowa. He serves as ranking member of the Senate Committee on the Judiciary. Anwar al-Awlaki, a US citizen, cleric and alleged leader of al-Qaeda in the Arabian Peninsula (AQAP), was killed in a US drone strike in Yemen on September 30th, 2011, in a joint CIA-US military operation (another US citizen, Samir Khan, was also killed). Leaks to the Washington Post and New York Times in April 2010 cited explicit White House approval for placing al-Awlaki on what has been described as a CIA “kill list.” The full text of Attorney General Holder's speech at Northwestern Law School can be found onthe Justice Department website.

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